Citation Nr: 0011858
Decision Date: 05/04/00 Archive Date: 05/12/00
DOCKET NO. 93-14 570 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
status-post anterior cruciate ligament (ACL) repair and
partial meniscectomy, right knee.
2. Entitlement to an increased evaluation for chondromalacia
patella, left knee, currently evaluated at 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.A. Howell, Counsel
INTRODUCTION
The veteran served on active duty from June 1978 to June 1982
and from October 1982 to October 1985.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Denver,
Colorado, which denied the claims on appeal.
In April 1995, the Board remanded the issues to the RO for
further development. The requested developments have been
accomplished and the case is now ready for appellate review.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran's claims.
2. The veteran's right knee disorder is manifested mainly by
subjective complaints of pain, fatigability, and a limp.
3. Current objective symptoms of the veteran's right knee
disorder include essentially full range of motion. There is
no objective clinical evidence of swelling, deformity, heat,
redness, or instability; moderate right knee impairment has
not been demonstrated.
4. The veteran has degenerative changes of the right knee
confirmed by X-ray evidence.
5. The veteran's left knee disorder is currently manifested
mainly by subjective complaints of pain.
6. Current objective symptoms of the veteran's left knee
disorder include essentially full range of motion. There is
no objective clinical evidence of swelling, deformity, heat,
redness, or instability; moderate left knee impairment has
not been demonstrated.
7. The veteran has degenerative changes of the left knee
confirmed by X-ray evidence.
CONCLUSIONS OF LAW
1. A separate schedular evaluation of 10 percent, but no
more, for arthritis of the right knee is warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R.
§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a,
Diagnostic Codes 5003, 5010, 5256, 5257, 5258, 5259, 5260,
5261 (1999); VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997).
2. The criteria for a disability evaluation in excess of 10
percent for status-post anterior cruciate ligament (ACL)
repair and partial meniscectomy, right knee, have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999);
38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59,
4.71, 4.71a, DCs 5003, 5010, 5256, 5257, 5258, 5259, 5260,
5261 (1999).
3. A separate schedular evaluation of 10 percent, but no
more, for arthritis of the left knee is warranted.
38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R.
§§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a,
Diagnostic Codes 5003, 5010, 5256, 5257, 5258, 5259, 5260,
5261 (1999); VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997).
4. The criteria for a disability evaluation in excess of 10
percent for chondromalacia patella, left knee, have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999);
38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59,
4.71, 4.71a, DCs 5003, 5010, 5214, 5256, 5257, 5258, 5259,
5260, 5261 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board determines that the veteran's claims for
increased ratings are well grounded within the meaning of
38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) by virtue of
his statements that he has suffered an increase in his
disabilities. See Drosky v. Brown, 10 Vet. App. 251, 254
(1997). Further, the Board finds that all relevant facts
have been properly developed and no additional assistance to
the veteran is required to comply with the duty-to-assist
mandated by 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1999). Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). However,
the Board will consider only those factors contained wholly
in the rating criteria. See Massey v. Brown, 7 Vet.
App. 204, 208 (1994). Where there is a question as to which
of two evaluations shall be applied, the higher evaluations
will be assigned if the disability more closely approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (1999). When,
after careful consideration of all procurable and assembled
data, a reasonable doubt arises regarding the degree of
disability, such doubt will be resolved in favor of the
veteran. 38 C.F.R. § 4.3 (1999).
In addition, in evaluating increased ratings, consideration
will be given to whether higher ratings are available under
the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca
v. Brown, 8 Vet. App. 202 (1995). Specifically, in DeLuca,
the Board was directed to consider whether a veteran's
complaints of shoulder pain could significantly limit
functional ability during flare-ups or when the arm was used
repeatedly, thus warranting a higher evaluation under
38 C.F.R. § 4.40. Moreover, the Board will consider whether
weakened movement, excess fatigability, and incoordination
support higher ratings under 38 C.F.R. § 4.45. See DeLuca, 8
Vet. App. at 207.
Further, the VA General Counsel issued a precedential opinion
(VAOPGCPREC 23-97) holding that a claimant who had arthritis
and instability of the knee may be rated separately under DCs
5010 and 5257, while cautioning that any such separate rating
must be based on additional disabling symptomatology. In
determining whether additional disability exists, for
purposes of a separate rating, the veteran must meet, at
minimum, the criteria for a noncompensable rating under
either of those codes. Cf. Degmetich v. Brown, 104 F.3d
1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent
ratings is consistent with requirement that service
connection may be granted only in cases of currently existing
disability).
The RO has rated the veteran's right knee disability under
5259 (removal of knee cartilage) and the left knee disability
under DC 5014 (osteomalacia). The Board will also consider
DCs 5003, 5010, 5256, 5257, 5258, 5260, and 5261, based upon
degenerative changes, knee ankylosis, knee impairment, and
limitation of motion.
Arthritis due to trauma under DC 5010 substantiated by X-ray
findings is rated as degenerative arthritis under 5003.
Under DC 5003, degenerative arthritis established by X-ray
findings will be rated on the basis of limitation of motion
under the appropriate diagnostic code for the specific joint
or joints involved. Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. 38 C.F.R. § 4.71a,
DC 5003 (1999). When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under
the appropriate DC, a rating of 10 percent is warranted for
each major joint or groups of joints affected by limitation
of motion, to be combined, not added under DC 5003. Further,
under DC 5014, the diseases are rated on limitation of motion
of the affected part, as arthritis, degenerative.
Under DC 5256, favorable ankylosis of the knee, in full
extension or in slight flexion between 0 degrees and 10
degrees, warrants a 30 percent evaluation; ankylosis in
flexion between 10 degrees and 20 degrees warrants a 40
percent evaluation; ankylosis in flexion between 20 degrees
and 45 degrees warrants a 50 percent evaluation; and
extremely unfavorable ankylosis in flexion at an angle of 45
degrees or more warrants a 60 percent evaluation. Under DC
5257, when there is impairment of the knee, including
recurrent subluxation or lateral instability, a 10 percent
evaluation will be assigned where the disability is slight; a
20 percent will be assigned for moderate disability; and 30
percent warranted for severe disability.
Under DC 5258, an evaluation of 20 percent is assigned where
the semilunar cartilage is dislocated, with frequent episodes
of locking, pain, and effusion. Under DC 5259, a 10 percent
evaluation is assigned for removal of the semilunar
cartilage, symptomatic. Limitations of flexion under DC 5260
are assigned a 10 percent evaluation when flexion is limited
to 45 degrees; and a 20 percent evaluation when flexion is
limited to 30 degrees. A 30 percent evaluation is assigned
under this code when flexion is limited to 15 degrees.
Limitations of extension under DC 5261 are assigned a 10
percent evaluation when extension is limited to 10 degrees;
and a 20 percent evaluation when extension is limited to 15
degrees. A 30 percent evaluation is assigned under this code
when extension is limited to 20 degrees. The motion of the
knee is considered full where extension is to 0 degrees and
flexion is to 140 degrees. 38 C.F.R. § 4.71, Plate II
(1999).
I. Entitlement to an Evaluation in Excess of 10 Percent for
Status-Post Anterior Cruciate Ligament (ACL) Repair and
Partial Meniscectomy, Right Knee
Historically, the veteran filed a claim for a right knee
disability and a non-compensable evaluation was assigned by
rating decision dated in October 1991. He disagreed with the
initial rating, which was subsequently increased to a 10
percent evaluation by rating decision dated in December 1992
and made effective for the entire appeal period. However,
the Board notes that a rating decision issued subsequent to a
notice of disagreement which grants less than the maximum
available rating does not "abrogate the pending appeal."
AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v.
Derwinski, 1 Vet. App. 160 (1991). Consequently, as the
veteran has not withdrawn the appeal, the issue of an
increased evaluation above the current 10 percent remains in
appellate status. Further, the issue before the Board is
taken to include whether there is any basis for "staged"
ratings at any pertinent time, to include whether a current
increase is in order. See Fenderson v. West, 12 Vet. App.
119 (1999). As the statement of the case and the
supplemental statements of the case have indicated that all
pertinent evidence has been considered, and the RO has
determined that a 10 percent rating is to be assigned for the
entire period at issue, the Board can proceed with its review
without prejudice to the veteran. See Bernard v. Brown,
4 Vet. App. 384 (1993).
At a hearing in May 1992, the veteran testified that he
experienced right knee instability at times and wore a brace.
He also reported daily pain, depending on his activities, and
had some minor effusion. He reported that an earlier VA
examiner had ignored his complaints that he could no longer
run, could not squat, and put most of his weight on his left
leg. Medications included Ibuprofen, taken sporadically.
The veteran referenced that a private treating physician
indicated that he had some mild instability in the right
knee, with good range of motion, and no ligament problems.
After reviewing the evidence on file, it is the conclusion of
the Board that a separate 10 percent evaluation for arthritis
of the right knee is in order. Specifically, in the most
recent VA examination report dated in August 1998, the
examiner noted that a 1996 MRI showed patellofemoral
degenerative changes in the right knee. Further, the final
diagnoses included status post right knee ACL reconstruction
with degenerative arthritic changes. Accordingly, the
veteran has clear X-ray evidence of degenerative arthritis.
In addition, the most recent VA examination report noted that
the veteran's motion of the right knee was 0-140 degrees,
which is anatomically normal under 38 C.F.R. § 4.71, Plate
II. As noted, under DC 5010-5003, a 10 percent evaluation is
warranted with X-ray evidence of arthritis when the
limitation of motion is noncompensable. In this case,
limitation of motion is noncompensable under DCs 5260 and
5261; however, painful motion has been demonstrated;
accordingly, a 10 percent evaluation is warranted under DC
5010-5003 with confirmed X-ray evidence of arthritis.
It is further the conclusion of the Board that an increased
rating, in excess of 10 percent, is not otherwise in order.
The degree of impairment resulting from a disability is a
factual determination with the Board's primary focus upon the
current severity of the disability. Francisco v. Brown, 7
Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet.
App. 396, 402 (1994). Considering the factors as enumerated
in the applicable rating criteria, which is the most
probative evidence to consider in determining the appropriate
disability rating to be assigned, the Board finds that the
evidence does not reflect that a greater than 10 percent
rating for a right knee disability is warranted.
The Board notes that the recent clinical findings do not
disclose that the veteran has any ankylosis of the right
knee. Ankylosis is defined as stiffening or fixation of a
joint. On the recent VA examination, the veteran's range of
motion of the right knee was reported as flexion to 140
degrees and extension to 0 degrees (with 0-140 degrees
considered anatomically normal). Moreover, the examiner
specifically noted no evidence of ankylosis. Therefore, the
Board can find no basis under DC 5256 to grant the veteran a
higher than 10 percent evaluation.
Moreover, the evidence does not indicate that veteran
currently experiences more than a slight impairment of his
right knee. The most recent medical records do not reveal
objective clinical evidence of swelling, deformity, laxity of
the right knee, subluxation, lateral instability, non-union,
loose motion, malunion, or atrophy. In addition, there was
no incoordination, weakness, or lateral stressing noted.
These findings are consistent with the previous VA
examination reports dated in September 1992, October 1996,
and September 1997, and with numerous VA outpatient treatment
and private medical records.
Although the Board notes that the veteran has reported pain,
fatiguability, and a limp, and some tenderness was noted on
examination, the clinical evidence of record has not shown
actual recurrent subluxation or lateral instability of the
right knee. As noted above, a slight knee impairment is
assigned a 10 percent evaluation under DC 5257. As the
clinical findings do not support a finding of a moderate
degree of recurrent subluxation or lateral instability, the
evidence is not sufficient to warrant a higher rating under
this code. Slight knee impairment, however, can be said to
be present. This contemplates the functional limitations as
set forth by the veteran. Pain, fatiguability, limping, and
other symptoms are considered by the Board in the conclusion
that the 10 percent rating for knee impairment is warranted,
along with the separate compensable rating for arthritis.
Further, the veteran is rated under DC 5259 and the Board
notes that no more than a 10 percent rating is available
under this diagnostic code. Moreover, while the most recent
X-ray report indicated equivocal evidence of joint effusion,
there is no current objective evidence of cartilage
dislocation with frequent episodes of locking, pain, or
confirmed evidence of effusion into the joint on which to
base a 20 percent rating under DC 5258. In addition, as
noted above, the veteran's anatomical motion of the right
knee does not give rise to a rating in excess of 10 percent
under either DC 5260 or DC 5261. Specifically, current range
of motion of the knee was reported as extension to 0 degrees
and flexion to 140 degrees, on the right. A higher
evaluation would only be available under these codes with
extension limited to 15 degrees and flexion limited to 30
degrees. Accordingly, the Board finds the currently-assigned
10 percent evaluation appropriate.
II. Entitlement to an Increased Evaluation for
Chondromalacia Patella, Left Knee
Historically, the veteran's claim for service connection for
a left knee disability was denied by rating decision dated in
October 1991. Upon remand from the Board, the RO granted
entitlement to service connection for a left knee disorder
and assigned a noncompensable evaluation for the entire
period on appeal. In September 1996, the veteran filed a
claim for an increased rating, which was granted to 10
percent by rating decision dated in January 1997. As noted
above, however, this is not a full grant of the benefit and
the issue remains on appeal. See AB v. Brown, 6 Vet. App.
35, 38 (1993); Corchado v. Derwinski, 1 Vet. App. 160 (1991).
Similar to the analysis of the veteran's right knee
disability, the Board concludes that a separate 10 percent
evaluation for arthritis of the left knee is in order.
Specifically, the August 1998 VA examination report indicates
that the veteran has degenerative changes in the
retropatellar surface. Accordingly, the veteran has clear X-
ray evidence of degenerative arthritis. Further, the most
recent range of motion of the veteran's left knee was
reported at 0-140 degrees, which is anatomically normal under
38 C.F.R. § 4.71, Plate II. Thus, as limitation of motion of
the left knee is noncompensable under DCs 5260 and 5261 and
painful motion has been demonstrated, a 10 percent evaluation
is warranted under DC 5010-5003 with confirmed X-ray evidence
of arthritis.
However, the Board further finds that no greater than a 10
percent evaluation for the veteran's left knee disability is
warranted. Specifically, as limitation of motion is
anatomically normal under the appropriate regulation, there
is no evidence of left knee ankylosis and, accordingly, no
basis for a higher rating under DC 5256. Furthermore,
because the veteran's range of motion is essentially normal,
a higher rating under DCs 5260 or 5261, based on limitation
of flexion or extension of the leg, is not warranted. VA
outpatient treatment, private medical records, and previous
VA examination reports fail to show evidence of recurrent
subluxation or lateral instability; thus, there is no basis
on which to assign a higher rating under DC 5257.
Moreover, although the veteran had undergone arthroscopy and
a lateral release and debridement several weeks prior to the
August 1998 VA examination, a higher than the currently-
assigned 10 percent rating is unavailable under DC 5259. In
addition, there is no evidence of dislocated cartilage or
frequent episodes of locking. Although the veteran reports
pain in the left knee, and the most recent X-ray was
equivocal for joint effusion, the Board finds that the
overall picture of the veteran's left knee disability does
not meet the standard of a higher rating under DC 5258.
Thus, the currently-assigned 10 percent rating is
appropriate.
With respect to both claims, the Board finds that the current
ratings contemplate the veteran's currently-demonstrated
complaints of pain and the limitation of motion and
functional loss due to pain in both the right and left knees.
However, even considering the standards outlined in DeLuca v.
Brown, 8 Vet. App. 202 (1995) and the provisions of 38 C.F.R.
§ 4.40 et seq., there is no basis on which to assign higher
ratings. Significantly, as noted above, there is no basis
under the schedular criteria for ratings higher than the
currently-assigned 10 percent. Further, the clinical
evidence of record, including the VA examinations and the
outpatient treatment records, simply do not show that the
veteran's symptoms with respect to his right and left knee
disabilities satisfy the schedular criteria for higher
ratings. As noted above, physical examinations have revealed
no edema, no effusion, no instability, no weakness, no
tenderness, no redness, no heat, and no abnormal movement.
Accordingly, the Board finds that the functional limitation
due to pain is contemplated in the currently-assigned 10
percent ratings for each knee and the newly-assigned separate
compensable evaluation for arthritis, and indicia of higher
ratings, such as atrophy, muscle wasting, incoordination,
weakness, excess fatigability, etc., are not shown.
The Board notes that VA has a duty to acknowledge and
consider all regulations which are potentially applicable
based upon the assertions and issues raised in the record and
to explain the reasons used to support the conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
regulations include, but are not limited to, 38 C.F.R. § 4.1,
that requires that each disability be viewed in relation to
its history and that there be an emphasis placed upon the
limitation of activity imposed by the disabling condition,
and 38 C.F.R. § 4.2 which requires that medical reports be
interpreted in light of the whole recorded history, and that
each disability must be considered from the point of view of
the veteran's working or seeking work.
Moreover, 38 C.F.R. § 4.10 states that, in cases of
functional impairment, evaluations are to be based upon lack
of usefulness, and medical examiners must furnish, in
addition to etiological, anatomical, pathological, laboratory
and prognostic data required for ordinary medical
classification, full description of the effects of the
disability upon a person's ordinary activity. This
evaluation includes functional disability due to pain under
the provisions of 38 C.F.R. § 4.40. Special consideration is
given to factors affecting function in joint disabilities
under 38 C.F.R. § 4.45.
These requirements for the consideration of the complete
medical history of the claimant's condition operate to
protect claimants against adverse decisions based upon a
single, incomplete or inaccurate report and to enable the VA
to make a more precise evaluation of the level of disability
and any changes in the condition. The Board has considered
these provisions, taking into consideration the objective
findings as well as the subjective statements of the veteran,
and finds the right knee and left knee disabilities warrant
no more than a 10 percent evaluation, respectively, except
that separate compensable evaluations are warranted for
arthritis of the right knee and for arthritis of the left
knee.
Finally, when evaluating an increased rating claim, it is
well established that the Board may affirm an RO's conclusion
that a claim does not meet the criteria for submission for an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1), or
may reach such a conclusion on its own. See Floyd v. Brown,
8 Vet. App. 88, 96 (1996); Bagwell v. Brown, 9 Vet. App. 337,
338-339 (1996). In the present case, the Board notes that it
is not shown that the veteran's service-connected
disabilities cause marked interference with employment or
have necessitated frequent periods of hospitalization. In
the absence of such factors, the Board finds that the record
does not present such "an exceptional or unusual disability
picture as to render impractical the application of the
regular rating schedule standards" thus an extraschedular
rating under the provisions of 38 C.F.R. § 3.321(b)(1) is not
warranted. See Bagwell, 9 Vet. App. at 338-339; Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
ORDER
An rating in excess of 10 percent for the veteran's right
knee disability is denied; however, a separate disability
rating of 10 percent, but no more, for degenerative changes
of the right knee is granted, subject to the law and
regulations governing the awards of monetary benefits.
An rating in excess of 10 percent for the veteran's left knee
disability is denied; however, a separate disability rating
of 10 percent, but no more, for degenerative changes of the
left knee is granted, subject to the law and regulations
governing the awards of monetary benefits.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeal